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Administrative Sanctions

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Administrative Sanctions
J. Dara Lynott B.E., MSc, PE, C.Eng., FIEI and Ray Cullinane BAgrSc., MA, Dip. EIA (Mmgt), Office
of Environmental Enforcement, Environmental Protection Agency
I. INTRODUCTION
The Office of Environmental Enforcement (OEE) is an office within the EPA dedicated to the
implementation and enforcement of environmental legislation in Ireland. The core objectives of the
Office of Environmental Enforcement are to bring about improved compliance with environmental
legislation in Ireland and to ensure that those who flout environmental law and cause environmental
pollution as a result of their actions are held to account. The Office of Environmental Enforcement
delivers enforcement in two ways. It is directly responsible for enforcing EPA licences granted to waste,
industrial and other activities. It also supervises the environmental protection activities of local
authorities, through auditing their performance, providing advice and guidance, and in appropriate cases,
giving binding directions. The EPA has the power to prosecute summarily at District Court level and also
prepares files for the DPP in order to progress cases on indictment. While prosecution is considered to be
an effective enforcement action in many cases, it may be less effective against licensees with little in the
way of stakeholder interest. The pursuit of a criminal prosecution is frequently difficult and time
consuming, mainly because criminal law entails particular procedural safeguards and outcomes, which
are not proportionate to the harm caused, particularly where there is no “criminal” intent. It has also been
argued that fines imposed by the courts can often be small compared to the economic benefits of the
offence or that they do not necessarily achieve the desired outcome or a change in behavior. This has led
to some public discussion on the potential use of administrative sanctions for environmental offences in
Ireland.
II. ADMINISTRATIVE SANCTIONS
The terms “administrative sanction” and “civil penalty” are used interchangeably and often misused.
Generally speaking, a civil penalty is one imposed by the courts applying civil rather than criminal court
processes. They are often financial in nature and closely resemble fines and other punishments imposed
on criminal offenders; however, the processes by which these penalties are imposed are not criminal.
Administrative sanctions are broadly understood as being sanctions imposed by the regulator without
intervention by a court or tribunal.
In 2000 the European Union Network for the Implementation and Enforcement of Environmental Law
(IMPEL)1 completed a review2 of the use of administrative fines. It determined that the use of some form
of administrative fine for environmental breaches was in place in several Member States. The report
1
The European Union Network for the Implementation and Enforcement of Environmental Law is an informal
network of the environmental authorities of EU Member States, acceding and candidate countries, and Norway. The
European Commission is also a member of the network and shares the chairmanship of its plenary meetings. The
network is commonly known as the IMPEL Network
2
Faure, M., and Heine, G., The Criminal Enforcement of Environmental Law in the European Union, July 2000,
based on information supplied by: IMPEL Working Group on Criminal Prosecution in Environmental Cases. Also
available online at http://ec.europa.eu/environment/impel/pdf/criminal.pdf
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indicated that some Member States had found administrative sanctions to be as effective as criminal
sanctions.
In 2004 the Commission produced a study on measures other than criminal ones in the EU Member
States.3 This study assessed the use and effectiveness of non-criminal (administrative) measures in 15
Member States for the enforcement of some EC environmental Directives, particularly in their deterrent
effect and how they compared with criminal measures. The report found that there were many
administrative enforcement systems in place related to different national legal systems in Member States,
and that non-criminal measures and sanctions can be applied and imposed in all of them in order to
enforce environmental legislation, and therefore to ensure that compliance is achieved. One of the main
conclusions of the report was that the key obstacle to an efficient administrative enforcement regime was
the lack of human, technical and financial resources for inspections, as well as the absence of political
will to enforce environmental legislation and impose sanctions.
The authors of the Commission study found it difficult to determine the effectiveness of the
administrative enforcement regime—as compared to the criminal enforcement regime—from a
quantitative perspective due to the lack of statistics at national and aggregated levels that are based on a
harmonized classification of infringements to environmental legislation. However, from a qualitative
perspective, it was concluded that the administrative enforcement regimes could potentially be efficient
for the following reasons:
• The procedure is faster and less costly as compared to criminal proceedings, the results of which are
uncertain.
• The competent administrative authority can take a measure that is immediately applicable so that the
environmental infringement can be tackled in the shortest delay, notwithstanding the possibility for
the addressee to challenge such decision before a court.
• The administrative enforcement regime offers a great variety of measures, including accessory
measures that can be applied either before or concurrently to the sanction imposed; any such
measures may have either an incentive effect or a coercive nature.
• Administrative measures and sanctions are better tailored to address environmental infringements as
they primarily concern the conditions under which an activity, the potential source of pollution,
may be exercised.
• Administrative sanctions can be imposed to legal persons as well as to natural persons, which help
overcome limitations of criminal systems where only culpa in eligendo or in custodiendo applies.
• Wherever the person exercising an activity potentially harmful to the environment is linked to the
administrative competent authorities through a special relationship (permit, registration, reporting
obligation), the administrative measures and sanctions can be imposed on the basis of an informed
decision.
The study also concluded that the efficiency of administrative enforcement regimes may be undermined
because of the following reasons:
• There is great discretion left to competent authorities with regard to the decision to sanction or not.
In addition, there is no immediate control over the administration’s appreciation of the situation.
3
Study on measures other than criminal ones in cases where environmental Community law has not been respected
in the EU Member States, Summary Report, September 20, 2004, Milieu Ltd and Huglo Lepage Associates, B4
3040A/2003/369724/MAR/A.3. Also available online at
http://ec.europa.eu/environment/legal/crime/pdf/ms_summary_report.pdf
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• In most Member States, sanctions can only be imposed after “warnings” have been addressed, thus
giving more place to negotiations rather than punishment.
• The proximity between competent authorities and local companies may affect the margin of
manoeuvre of the competent authority in a way that leads to bargaining to achieve compliance
rather than to a deterrent punishment, thus giving priority to some private vested economic interests
instead of protecting the environment.
• The lack of transparency in the decision making process leaves aside the public and NGOs, creating
some obscurantism in particular when enforcement tasks are not differentiated from other
administrative duties such as permitting.
• Administrative enforcement procedures are not implemented in an integrated manner (except for
IPPC installations). Administrative measures and sanctions are rarely designed in a coherent and
integrated manner, which leads to a fragmented regime where some sanctions may be stricter in
case of certain infringements than for others. This is problematic, not only because this situation
may be an incentive for operators to shift pollution from one media to another depending on the
level of sanctions but also in case there are different competent authorities, which do not always
coordinate their actions and which may compete in using their powers of police.
• Administrative sanctions are not aggravated in the case of recidivism of infringements.
• There is little or no social blame associated to administrative sanctions.
• The most common enforcement measures applied are fines which are usually fixed at a level closer
to minimum allowed by the law.
• There is no systematic obligation to restore the environment whenever damage occurs.
The report concluded that in terms of effectiveness, both criminal and administrative regimes present
advantages and disadvantages and that the two regimes should not be opposed to each other. On the
contrary, effectiveness of enforcement can be maximised if synergies are created in order to reconcile
prevention (through the control exercised by the administration), compliance, dissuasion of infringements
(deterrent effect), and punishment (sanction).
In 2005 Peter Hampton4 produced his report, Reducing administrative burdens: effective inspection and
enforcement, and recommended that the UK Government establish a comprehensive review of regulators’
penalty regimes. The Hampton Review, in particular, stated the principle that the few businesses that
persistently break regulations should be identified quickly and face proportionate and meaningful
sanctions. The review went on to state that regulatory penalty regimes can be cumbersome and
ineffective, and identified the following features as shortcomings:
• penalties handed down by courts are not seen as an adequate deterrent to regulatory non-compliance
as the level of financial penalty can often fail to reflect the financial gain of non-compliance with
regulatory obligations; and
• the range of enforcement tools available to many regulators is limited, giving rise to disproportionate
use of criminal sanctions, which can be a costly, time-consuming and slow process.
The UK Government appointed Professor Richard B. Macrory5 to conduct a review of regulators’ penalty
regimes and to make recommendations; these were subsequently published in 2006. Professor Macrory
made a number of recommendations to the UK Government, including the following:
4
Hampton, P., Reducing administrative burdens: Effective inspection and enforcement, HM Treasury, March 2005,
Recommendation 8. Also available online at http://www.hm-treasury.gov.uk/d/bud05hamptonv1.pdf
5
Macrory, R., Regulatory Justice: Making Sanctions effective, November 2006.
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• to examine the way in which it formulates criminal offences relating to regulatory non-compliance;
• to introduce schemes of Fixed and Variable Monetary Administrative Penalties, available to those
regulators who are Hampton compliant,6 with an appeal to an independent tribunal rather than the
criminal courts;
• to introduce enforceable undertakings as an alternative to criminal prosecution;
• to strengthen the system of statutory notices backed up by administrative financial penalties and
appeal to a regulatory tribunal;
• to introduce pilot schemes involving restorative justice techniques; and
• to introduce alternative sentencing options in the criminal courts for cases related to regulatory non-
compliance such as a Profit order, Publicity Orders and Corporate Rehabilitation Orders.
In 2008 the UK Government accepted Professor Macrory recommendations in full and took forward four
of the main recommendations with the enactment of the Regulatory Enforcement and Sanctions Act 2008.
Part three of the said Act commenced in October 2008 and introduced new civil sanctions as a possible
alternative to criminal prosecution for relevant offences for a wide range of regulators including the
Environment Agency, Financial Services Authority, HSE and others. The new sanctions introduced
include fixed monetary penalties, discretionary requirements (compliance notice, restoration notice and
variable monetary penalties), stop notices and enforcement undertakings.
Professor Macrory7 advocated strongly for the need to have access to an effective and quick appeal route
when referring to administrative penalties and this has been adopted in the new UK regime. This new
two-tier appeals system allows for appeals to be heard at a first-tier tribunal or another statutory tribunal
and requires that detailed grounds for appeal are set out for each sanction.
In Ireland, fines and administrative sanctions are used by enforcement authorities in other sectors for
minor offences such as littering or driving offences. There is also provision under the Health and Safety
Act 2005 for use of fines for minor health and safety breaches. Farmers may also be subject to fines for
non-compliance with the code of good farming practice under the EU farm payments regulations.
In 2007 the EPA’S Office of Environmental Enforcement commissioned a study8 on the use of
civil/administrative sanctions relevant specifically to environmental protection and the control of
pollution legislation used by the EPA and local authorities. The study reviewed the use of administrative
sanctions for environmental offences in a number of comparable countries and examined any
impediments, legal or otherwise to their possible introduction in Ireland. The drivers for the study from a
regulatory point of view were:
• The burden of proof and the resource requirement to use the current criminal code for regulatory
offences.
• The lack of options between the maximum District Court sanction of €3,000 and the maximum
Circuit Court sanction of €15 million.
• To try and address the economic benefits gained from non-compliance.
• The lack of criminal intent for many of the regulatory breaches prosecuted by the Agency.
6
Hampton Compliant regulators are regulators who have reduced the administrative burden of regulation, while
maintaining or even improving regulatory outcomes. To do this they must direct their efforts, inspections and data
requirements on regulated facilities on the basis of risk.
7
Macrory, R., Regulatory Justice: Sanctioning in a Post Hampton World, Consultation Document, May 2006.
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A Study on the Use of Administrative Sanctions for Environmental Offences in other comparable countries and
assessment of their possible use in Ireland.
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For the purposes of the study commissioned by the OEE, administrative sanctions were defined as those
measures, which regulatory authorities have available to them, to enforce environmental law without
resort to criminal or civil court proceeding, although in many instances they will be a precursor to court
proceedings. Such sanctions include warning letters, fixed administrative penalties and clean-up notices.
Judicial sanctions are those remedies which a court has available to it in civil proceedings to enforce
environmental law. Such sanctions include injunctions, publicity orders and environmental services
orders. Criminal sanctions are those penal sanctions, which a criminal court has available to it, where an
offender has been successfully prosecuted. Such sanctions include fines and imprisonment. Civil
sanctions are seen as a hybrid type of sanction. They are a civil “fine” intended to compensate for the
environmental harm done as well as punish the wrongful conduct of the offender. Civil penalties are
available in two main forms: administrative civil penalties and judicial civil penalties. Administrative
penalties enable the regulator to negotiate the amount of the civil penalty with the offender. Judicial civil
penalties enable the court to determine civil penalties on the basis of the lower civil standard “balance of
probabilities” rather than the criminal standard “beyond all reasonable doubt”.
III. CURRENT USE OF ADMINISTRATIVE SANCTIONS
The OEE study considered that practice in the UK, USA, Germany and Australia should be reviewed for
the purposes of the comparative study. These countries were chosen to provide a suitably broad coverage
across the spectrum of different approaches taken in different jurisdictions, ranging from the higher value,
comprehensive application model of civil penalties used in the US, to the lower value minor offence
administrative penalties model used in Germany. All non-criminal sanctions (i.e. both civil and
administrative sanctions) in the four jurisdictions were assessed. The following schedule lists the 20 non-
criminal sanctions used in these countries and sets out a brief description of what the sanction is, how
effective they have tended to be in those countries, and whether Ireland already has such a sanction.
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Sanction Description UK Australia USA Germany Ireland
Civil Administrative
Persuasion / Informal warning, advice Used Authority may Warnings rarely Used Informally used.
verbal caution or support from the extensively. convene a issued without extensively.
regulator to the offender. conference. prior
consultation.
Information To provide records, Used regularly. Sanction available to Used regularly, Used Sanction available in
Notice documents or evidence Authority. often when effectively. Ireland.
regarding a suspected / applying for
actual regulatory breach. permits.
Mandatory Where the regulator No general Sanction available. Used in lieu of Effectively Sanction available in
Environmenta compels a company to statutory other penalties used. Ireland.
l Audit carry out an audit of its provision, but and fines.
activities. often a
condition of
issuing a
permit.
Enforcement Where the offender No equivalent Used effectively. No equivalent No equivalent No equivalent
Undertakings provides written sanction in the sanction in the sanction in sanction in Ireland.
/ Agreement undertakings to the UK. USA. Germany.
regulator to remedy the
harm done in a certain
way and by a certain
time and can be
enforceable in court.
Warning Notification of a Commonly used Issued to advise an Rarely issued Effectively Sanction available in
Letter regulatory breach in this occupier of non- without taking used. Ireland under the
without taking further jurisdiction. compliance with an further Planning and
immediate action. Agreement Notice. immediate Development Act
action. 2000.
Fixed Payment of a specified Typically used Used in relation to Permits may Utilised No equivalent
Administrativ monetary amount by the to deal with waste discharges in stipulate successfully sanction in Ireland.
e Financial offender to discharge or minor offences. excess of permitted surcharges for under the
Penalty compensate for the amounts. discharges in relevant
breach. excess of Regulations.
permitted
amounts.
Variable & Payment of a variable No equivalent No equivalent No equivalent No equivalent No equivalent
Discretionary amount to be determined sanction in the sanction in sanction in the sanction in sanction in Ireland.
Administrativ at the discretion of the UK. Australia. USA. Germany.
e Penalties regulator to discharge or
compensate for the
breach.
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Sanction Description UK Australia USA Germany Ireland
Enforcement Served where a breach of Issued Used in limited Used very Effectively Sanction available in
Notice, Order regulatory consent, effectively circumstances. commonly. used. Ireland.
or Direction licence or legislation has under specific
occurred and specifies legislation.
steps to rectify the
breach and timescale.
Clean Up / Requires the offender to Environmental Used quite Several The EU Sanction available in
Pollution take specific action (e.g. regulators extensively in this programs “Polluter Pays Ireland.
Notice or to remedy any frequently issue jurisdiction. implemented to Principle” is
Order environmental harm or these types of remedy known applied in
to prevent or mitigate sanctions. environmental Germany and is
further harm). harm. effectively
enforced.
Regulator Where the offender has Used very Sanction available to Joint and Authorities Sanction available in
Step-In and failed to take corrective extensively by the Authority. several liability typically avoid Ireland.
Recovery of measures, the regulator the for clean up taking direct
Costs Order can step-in and remedy environmental costs are action.
the breach itself and regulators. applied to the
recover its costs from the offending party.
offender.
Financial Retention of security No equivalent Utilised in this Required under No equivalent Sanction available in
Security lodged as a condition of sanction in the jurisdiction. Federal sanction in Ireland.
permits, licences or UK. Hazardous Germany.
approvals or remediate Waste Rules.
any harm caused by a
breach.
Licence Where the regulator Under utilised. Used successfully. This sanction is Very rarely Sanction available to
Amendment, revokes, amends or Suspension / rarely (if ever) enforced in a limited extent in
Suspension or suspends all or parts of a Revocation only implemented. practice. Ireland.
Revocation licence or disqualifies or used in the
debars the offender from event of very
contracting with serious cases of
government agencies. non-
compliance.
Entry Powers Powers of the Authority No known Used successfully. No known No known Sanction available in
and authorised officers sanction. sanction. sanction. Ireland.
to enter premises and
may do any act that is
deemed necessary.
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Sanction Description UK Australia USA Germany Ireland
Civil Judicial
Civil Penalty A civil monetary Available in Used extensively. Frequently Sanction is No equivalent
penalty. limited issued by available in sanction in Ireland.
circumstances regulatory Germany but it
but are seldom agencies. is under
used. utilised.
Publicity Publicity by the No equivalent Used extensively. Utilised in this No equivalent In general, used by
Order / Name regulator or offending statutory jurisdiction. sanction in this regulators
and Shame by company of the offence, sanction in the jurisdiction. informally.
Regulator the environmental / other UK.
consequences and the
penalties / other orders
imposed.
Environmenta Requires the offender to No equivalent Used successfully. Used No equivalent No equivalent
l Services carry out a specified civil sanction in successfully. sanction in sanction in Ireland.
Order project for restoration / the UK. Germany.
enhancement of the
environment in a public
place or for public
benefit. Normally used
in conjunction with
Publicity Orders.
Monetary Made on its own or as No equivalent No such sanction Entities are Sanction is No equivalent
Benefits part of a Civil Penalty sanction in the known. routinely under utilised. sanction in Ireland.
Penalty Order whenever the regulator UK. required to pay
can quantify the benefit such penalties.
obtained and the
offender has sufficient
funds to pay all or a
significant proportion of
the benefit obtained.
Compensation To compensate either the No equivalent Cleanup costs may Sanction Authorities No equivalent
Order regulator or a third party sanction in the be recovered from applied typically avoid sanction in Ireland.
for costs or expenses UK. the offending party. successfully in taking direct
incurred in taking action the US. action.
to deal with damage to
the environment
resulting from the
offence. This order can
be made on its own or as
part of a Civil Penalty.
Costs Order To pay all, or part of, the Almost always The Court can only Sanction Effectively Sanction available in
costs of proceedings. utilised. use this sanction in applied used. Ireland.
limited successfully in
circumstances. the US.
Injunction Court order requiring Injunctions can Available to the Sanction Sanction is Sanction available in
someone to do or refrain be sought. Authority through available in this available in Ireland.
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Sanction Description UK Australia USA Germany Ireland
from doing something the Supreme Court. jurisdiction. Germany but it
is under-
utilised.
IV. ADMINISTRATIVE SANCTIONS IN IRELAND
It is apparent from the schedule that Ireland already has a number of non-criminal sanctions available to
regulators by virtue of existing legislation. In addition, regulators use some sanctions without any formal
statutory basis, e.g. warning letters, the “name and shame” process, and verbal warnings. In total, Ireland
has access already to 11 of the 20 non-criminal sanctions identified. There are nine non-criminal
sanctions that Ireland either does not have, or does not have a legislative basis for. These are:
1. Enforcement undertaking: Written undertakings to remedy the harm done that can be
enforceable in court
2. Warning letters: Notification of a regulatory breach without taking further immediate action.
3. Fixed penalties: (On the spot fines or infringement notices) Payment of a specified monetary
amount to discharge or compensate for the breach.
4. Variable/discretionary penalties: Payment of a variable amount determined by regulator to
discharge or compensate for the breach.
5. Civil penalty: (US and Australia) A civil monetary penalty—“balance of probabilities”.
6. Environmental or community services order: (Supplemental Environment Projects (SEPs) in
US). Offender to carry out a specified project for public benefit. Examples include community
medical treatment, recycling facilities, training conservation/remediation work/studies, education,
etc.
7. Monetary benefits penalty order: Made on its own or as part of a civil penalty whenever benefit
can be quantified.
8. Compensation order: Compensate regulator/ third party for costs incurred in taking action. Can
be made on its own or part of a civil penalty.
9. Name and shame or publicity orders: Order requiring publicity, environmental consequences,
penalties etc. This is informally used by the EPA and on an ad hoc basis by local authorities.
V. STEPS TO IMPLEMENTATION
The study determined that for any proposed implementation of additional administrative or civil
sanctions, Regulatory Impact Analysis (RIA) should be considered. RIA has been described by the Irish
Government as a “Tool used to assess the likely effects of a proposed new regulation”. 9 It is designed to
clarify relevant factors for decision makers by using a comprehensive and systematic compilation of
information. It is intended that this should encourage policymakers to make balanced decisions when they
consider legislative action against the wider economic goals. In particular the White Paper, Regulating
99
RIA Guidelines: How to Conduct a Regulatory Impact Analysis, Department of the Taoiseach, Government
Buildings, Dublin 2, October 2005, at 6. Available online at
http://www.betterregulation.ie/eng/Publications/RIAguidelines.pdf
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Better, issued by the Taoiseach’s office, set out six principles of good regulation namely, necessity,
effectiveness, proportionality, transparency, accountability and consistency.
By conducting a RIA, a number of options are likely to arise. For example, the identification of costs,
benefits and impacts, impacts on national competitiveness, impacts on the socially excluded or vulnerable
groups and whether the proposal will involve a significant compliance burden. Clear guidelines and
coherent policies would have to be published in any rollout of a new civil and administrative sanction
regime. The Hampton Report10 highlights that businesses are very concerned about the cumulative burden
of regulation. In particular, businesses spoke of multiple inspections and overlapping data requirements.
Moreover, that Report states that regulators are often failing to communicate their requirements simply
and effectively to businesses.
VI . POTENTIAL BARRIERS TO IMPLEMENTATION
The study identified that the implementation of any new civil and administrative sanctions regime must
consider and address a number of potential issues under the Irish Constitution and the European
Convention of Human Rights Act 2003.11 Ireland is a common law jurisdiction with a written
constitution, which contains a Bill of Rights. It is a member of the European Union and is bound by
European Union legislation and the decisions of the European Court of Justice. The European Convention
of Human Rights Act 2003 gives effect to the European Convention of Human Rights (“the Convention”)
in Irish law. Article 6(2) and 6(3) of the Convention confirms that everyone “charged with a criminal
offence” shall have the benefit of the presumption of innocence and certain other “minimum rights”,
including to be informed promptly of the charge; to allow adequate time and facilities to prepare a
defence; to have legal assistance; to examine witnesses; and to have an interpreter if necessary.
The European Court of Human Rights has established the following criteria to be followed in determining
whether or not proceedings should be labelled as criminal or civil. The proceedings are to be regarded as
criminal if they are: (a) brought by a civil authority and either; (b) have a requirement to show some kind
of culpability (wilful or neglectful) or; (c) have the potential for severe consequences such as
imprisonment. The emphasis is on the true nature of the proceedings rather than their form.
The study highlighted a number of Articles of the Irish Constitution that may be invoked in the event of
the imposition of any process that is deemed unfair or unjust; the imposition of unjust or excessive
monetary penalties on specific sectors of the regulated community (unequal impact upon small businesses
whose operations are generally more vulnerable to monetary penalties); the imposition by the court,
without the adoption of fair procedures, of any name and shame orders that impact on one’s right to a
good name. These Articles relate to the quasi-judicial role exercised by the regulator in the
implementation of administrative sanctions. These articles are:
• Article 40.1 – “All citizens as human persons shall be equal before the law”.
• Article 40.3.2 – “The State shall in particular by its laws protect as best it may from unjust attack
and in the case of injustice done, vindicate the life, person, good name and property rights of
every citizen”.
• Article 34.1 – “Justice shall be administered in courts established by law by judges appointed in
the manner provided by this Constitution, and, save in such special and limited cases as may be
prescribed by law, shall be administered in public”.
10
Hampton, P., Reducing administrative burdens: effective inspection and enforcement, HM Treasury, March 2005.
11
European Convention of Human Rights Act 2003 (No. 20 of 2003).
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The study noted that with greater sanctioning powers there is a greater responsibility and a need for
accountability. How administrative penalties are calculated would need to be transparent and have a quick
and effective appeal mechanism for the successful operation of such sanctions.
VII. CONCLUSIONS
The study concluded that there are potential benefits to the introduction of administrative sanctions, these
included the following:
• The regulator is in a better position to match their response to the realities of enforcement.
• They increase the ability of the court to take account of the actual damage caused to the
environment.
• They are considered a more sophisticated and flexible model of environmental enforcement,
which makes the goal of improved compliance more viable.
However, it was apparent from the study that a number of hurdles that exist would need to be addressed
before such sanctions could be introduced. These included the following:
• There is very little information or research available on whether the use of these administrative
sanctions secure real environmental benefits on the ground or lead to faster changes of behaviour
or more effective use of the regulators resources, (i.e. minimising the administrative burden of
operating such a system).
• There are constitutional (Arts 34 & 40.1), Human Rights and legislative issues that would have to
be satisfactorily addressed.
• Any issues arising out of a Regulatory Impact Analysis (RIA) would need consideration,
particularly issues such as the identification of costs, benefits and impacts, impacts on national
competiveness, impacts on socially excluded or vulnerable groups and whether there would be a
significant compliance burden involved.
• A quick, effective and transparent appeals mechanism would be required.
It is anticipated that this study funded by the Office of Environmental Enforcement, which is
available on www.epa.ie, will add to the better regulation debate and in its turn assist in the
enforcement of environmental law that is risk based and outcome driven.
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